Phan (Migration)

[2018] AATA 3179

Phan (Migration) [2018] AATA 3179 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kieu Ngoc Phan

CASE NUMBER:  1620084

DIBP REFERENCE(S):  BCC2016/2884356

MEMBER:Meredith Jackson

DATE:5 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 05 July 2018 at 5:42pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Student 500 (Student) – Genuine temporary entrant – switched course directions – history of failure to comply with visa conditions – family discord – tension between ambition and family – academic ability – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedul2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 November 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 30 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

5.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

The applicant is a genuine applicant for entry and stay as a student because:

(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)any other relevant matter; and

(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9.    The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

Consideration of claims and evidence

1. In considering the applicant’s circumstances, the Tribunal had regard to the specified matters in Direction 69 and to evidence submitted by the applicant prior to and at the hearing. The evidence supplied included but was not confined to:

   a.The delegate’s decision record;

   b.Personal submissions;

   c.Attainment certificates, academic and other records for various courses;

   d.IELTS Test Report Form;

   e.Confirmations of Enrolment, academic transcripts and certificates; and

   f.Oral evidence.

2. The applicant was assisted at the hearing by an interpreter qualified in the Vietnamese and English languages. The applicant answered some of the Tribunal’s questions directly without the assistance of the interpreter.

The applicant’s background

1. The applicant first came to Australia on a Student (TU 573) visa in December 2012 to study a Bachelor of Commerce in the higher education sector. The applicant was granted the visa under Streamlined Visa Processing (SVP) arrangements, which at the time simplified access to Australian universities for international students.

2. The applicant’s record in the Provider Registration and International Student Management System (PRISMS) confirms that she did not commence the higher education course she came here for, but instead completed four English language and academic preparation courses, two diplomas in business and management and two certificates in individual and aged care.

3. The applicant submitted that these choices were made for two reasons: because she was not sufficiently proficient in English to study at an undergraduate level, and because her parents wanted her to get business qualifications. The latter conflicted with her own ambition to become a nurse, a career direction which stemmed from being hospitalised following a bicycle accident.

4. In 2014 the applicant applied for and received an offer for a Diploma of Nursing and Bachelor of Nursing at TAFE Queensland and QUT, but did not have the English language standard (IELTS 6) to meet the entry standards. She did not accept the offer, instead she enrolled in a Hospitality course, but did not complete it.

5. In 2015 the applicant, at the urging of her parents, attempted another higher education course, a Bachelor of Professional Accounting, but again, she did not complete it, studying for just four months before withdrawing. This led to significant issues within the family about her study direction.

6. In April 2016 the applicant enrolled in two consecutive English courses, which she claims were to raise her English standards in anticipation of qualifying for nursing training. She did not qualify, achieving only a 5.5 overall band score, so chose to study towards a nursing degree by completing a Certificate III in Individual Support and Certificate IV in Ageing Support.

7. After completing no study for six months, she enrolled in a further two-month Advanced English program which she completed in June 2018, this time in an attempt to secure enrolment in a Diploma of Nursing to commence in June 2018. She completed the Advanced English course in June 2018, again recording a 5.5 overall band score.  

8. The applicant provided evidence she nevertheless found a pathway to nursing, and is  at the time of this decision enrolled in a Diploma of Nursing at National Institute of Education and Technology. If she competes the course, she submits, she hopes it will assist her gain credit towards a nursing degree.

9. The Tribunal raised with the applicant that she had not taken a direct pathway to her preferred career, switching course directions several times, and this might cause the Tribunal to be concerned she was not a genuine student. The applicant stated that she decided to change training directions and pursue the courses outlined because she hoped to persuade her parents she did not want to gain business qualifications but to pursue her own, emerging ambition to become a nurse.

10. She claims the nursing ambition created tension within the family and at one stage she quit a course to return home because she wanted to undertake a Diploma of Nursing and her parents would not allow it. She did not go home, and she claims they have now relented, and this was partly because her father had become ill and started to understand and appreciate health disciplines.

11. The student claims that with a nursing degree she would be employable in Vietnam, ideally in an international hospital in Da Nang, where nursing registration is more transferable. A Bachelor level qualification and Australian-based English training would assist this. This would allow her to both work and look after her parents.

12. The applicant submitted that all her siblings do not live in Vietnam and this is a strong reason for her to return home, so she can look after, and repay, her parents for their investment in her.

13. The applicant was questioned about whether she had ambitions to remain in Australia and she claimed she does not intend to remain here beyond completing a nursing degree; that she simply wants to do a Bachelor of Nursing at Griffith University, the same university that was in her original plan, and go home.

14. She stated that she had resisted an opportunity to stay: after she had completed her Certificate II, and at the end of a practical placement, she was offered a job at the placement provider. She chose not to pursue this, but to go on and fulfil her ambitions of completing a nursing degree.

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), and 8533 (notify address/education provider).

3. The Tribunal notes the applicant has a history of failure to meet the conditions of her Student (TU573) visa. She  breached condition 8516 ‘maintains eligibility’ on two occasions while she changed her study directions.

4. The Tribunal however is satisfied that the applicant’s circumstances, in particular the tension between her ambition and that of her parents, as described elsewhere in these reasons, are now resolved and she has a clear intention to comply with all visa conditions.

Conclusions and findings

1. The applicant claims that she was undertaking diploma and English study because she was unable to cope with degree level study, and that the courses she undertook were purposed to aid articulation to higher education. She claims the discord with her parents over her study direction placed her under considerable pressure to meet expectations she did not want to meet, and that, given her English performance, arguably could not meet. The Tribunal finds that to her credit, the applicant has survived this period of discord and is still studying and accepts there were credible reasons for her decisions to withdraw from, and enrol in, a number of courses over time.

2. The Tribunal concludes that for reasons including her own academic ability, particularly in English, and the indecisiveness and arguments with her parents over her study direction, the applicant has not followed a productive path to her career ambitions of becoming a nurse. The Tribunal finds her study progression to be lacklustre: in two years and three IELTS tests she has not progressed past a 5.5 overall band score in English. However on balance, the Tribunal accepts her argument that being unable to persuade her parents to let her pursue her chosen path instead of theirs led to a range of difficult issues, both academic and personal, that took a long time to resolve.

3. The Tribunal is aware that the applicant placed more evidence before it about her academic struggles, and about her family discord, than she put before the department when she applied for the visa.  The Tribunal, having had the opportunity to gain greater insights into her particular circumstances,  is persuaded that she now has a genuine plan for her study path and future, and that it is one her parents now support.

4. The Tribunal finds the applicant does intend to comply with all visa conditions in future.

5. The Tribunal finds at the time of its decision, the applicant is a genuine student and a genuine temporary entrant.

6. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

7. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

8. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

M. Jackson
Member